The split verdict on marital rape is a blow to women’s rights in India

Robust action against marital rape is necessary for India to end violence against women in all forms and fulfil its commitment to gender equality.

The split verdict on marital rape by the two-judge bench of the Delhi High Court comes as a blow to women’s rights. The verdict focused on the constitutionality of the exception under Section 375 of the Indian Penal Code, which currently allows men free access to sex with their wives, whether or not the wife is willing. The opinions of the two judges appear to have been poles apart. Justice Rajiv Shakdher maintained that the exception under Section 375 is unconstitutional and “steeped in patriarchy and misogyny”. The conclusion drawn by Justice C Hari Shankar suggests the opposite—that the provision is valid, that a husband is entitled to force his unwilling wife to have sex, and that such forced sex cannot be “equated with the act of ravishing by a stranger”.

In the authoritarian patriarchal setting that characterises much of India, social and economic life is organised by families. Women and girls are expected to remain subservient to the command of the patriarch, and this includes the expectation that a woman must acquiesce to sex with her husband even without consent. Justice Hari Shankar’s comments appear to acknowledge and even support the perpetuation of traditional patriarchal norms. For example, he suggests that “sex between a wife and husband…is sacred”, and that labelling the act of a husband compelling his unwilling wife to have sex as rape would be “completely antithetical to the very institution of marriage as understood in this country”. He also suggests that a man has the right to “on occasion, compel his wife to have sex with him even if she may not be inclined”. These statements not only present a strong endorsement of traditional ‘Indian’ norms, but also, as highlighted by Amita Pitre—Oxfam India’s lead specialist on gender justice—“reduces the woman to a second-class citizen within the marriage” and suggests that she is not equal before the law.

It is ironic that this opinion advocates the perpetuation of traditional patriarchal norms at a time when India—through its laws, policies, and programmes—has made a strong commitment to break down gender inequities and empower women and girls to exercise their voice and choice in matters that affect their lives. The Prime Minister himself has articulated his commitment to empowering women and girls on various forums. The Beti Bachao Beti Padhao programme is committed to eliminating gender preferences and gender disparities among the young. The spread of government-supported women’s self-help groups (SHGs) across the country is testimony to commitments to encouraging women’s economic empowerment. The Protection of Women from Domestic Violence Act, 2005, provides recourse to women who experience physical or emotional violence at home. All of these measures intend to empower women to break out of the shackles of traditional patriarchal structures. Is marital rape to be considered an exception that gives men unlimited, and perhaps disrespectful, access to their wives’ bodies?

What do we know about the incidence of marital rape in India?

The experience of forced marital sex or marital rape starts shortly after marriage and becomes a way of life for too many women. Although sexual violence in marriage is a sensitive topic and its disclosure is inhibited, careful surveys in which interviewers gain the confidence of and develop a rapport with women have yielded valuable evidence of its spread. The Youth in India study conducted across six states and representing more than 40 per cent of India, demonstrated that 17 per cent of women aged 15 to 24 in 2006–07 reported having experienced forced sex in marriage in the preceding year. In Bihar, Jharkhand, and Rajasthan, incidence rates ranged from 19 to 28 per cent. More recent evidence from the 2015–16 UDAYA study in Bihar and the 2018 Dasra survey in Jharkhand suggests that the situation remains worrying among slightly younger married adolescent girls (aged 15 to 19/21), of whom 29 per cent and 41 per cent respectively reported that they had experienced forced sex in marriage in the previous 12 months.

Older women also suffer sexual violence in marriage. A study of SHG members in Bihar—presumably the more empowered women in the community—found that as many as 40 per cent of them had experienced forced sex perpetrated by the husband in the previous six months. In an in-depth study of women’s experiences of marital violence, women explained their situation, highlighting their lack of choice and their sense of helplessness:

Do these men listen to us? Even when women don’t want relations, they force us to do it because we are their wives. For example, if I say that I don’t want to have sex, then he says that I am his wife and I have married him, so I have to listen to him. He says that it will happen whenever he wants it and then he forces himself on me.

Many women in India do recognise that marital rape is wrong and consider it a woman’s right to be able to refuse sex to her husband. Yet, they feel powerless to prevent it, duty-bound to remain in a violent marriage so as to uphold the izzat (honour) of the family, and ashamed to even disclose the violence to others. Additionally, they don’t know what their options may be in terms of help from authorities. The most common response to forced sex—as it is for physical violence in marriage—is silence, and the second, in extreme cases, is suicide.

Justice Hari Shankar has argued that forcing one’s unwilling wife to have sex cannot be “equated with the act of ravishing by a stranger”. The colourful language aside, it is well known the world over that the majority of women who experience rape are acquainted with their perpetrator; this perpetrator is often the husband. Globally, only 6 per cent of women who experience sexual violence name a stranger as the perpetrator. Whether marital rape is as severe as stranger rape is not the issue—marital rape remains an egregious violation of women’s fundamental human rights, and the psychological damage and physical injuries sustained through forced sex can be extensive.

Why must marital rape be criminalised?

Criminalising marital rape in these circumstances will serve several purposes. It will give women a means of self-protection and an option other than silence, toleration, or suicide. It will empower women and strengthen their ability to claim their rights and exercise choice in their own lives. It will also have a direct bearing on women’s health, protecting them from the deleterious reproductive tract consequences that can result from forced sex.

The existence of legal remedies may deter men from forcing sex on their wives. As one rural woman in a village in Bihar said after attending a programme on the Domestic Violence Act:

Now I am not so afraid of him. Now I make him afraid. I say, “See, should I call on that number which is printed on the card? They [helpline, authorities] will show me some way.”

Zero tolerance for any form of violence against women—including sexual violence perpetrated by their husbands—must surely be part and parcel of India’s commitment to gender equality and women’s human and reproductive rights. The introduction of laws, policies, and programmes that aim to empower women and address gender-based violence are a step in the right direction. Unfortunately, the absence of a law that criminalises marital rape still compromises women’s ability to exercise autonomy in their domestic lives. Will the Supreme Court heed the voices of women and ensure their bodily autonomy and human rights?